Download January 12, 2012

Court Organization and
Management
January 12, 2012
Ian Greene
Class Organizational Matters
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Group Presentations (class web page)
Final essay: see Justice on Target
Statistics (class web page)
Internships
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Students requiring internship for grad
diploma: Ahmed, Ahmadi, K., Ahmadi, N.,
Barakat, Cabral, Harvey, Kanagasabapathy,
Karmali, Khan, Mloka, Motavalli, Segal, Sihra,
Stone, Zamir (15)
Criminal Justice Inventory: indicate over what
period you wish to do the internship.
Greene: section on “Judges” in
Ch 3, The Courts
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To what extent are judges representative of the
larger population?
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Depends on representativeness of lawyers (discussed
next week), and appointment procedures
18% of judges “supernumerary”
Judges currently earn between $150K & $300K
Fewer partisan appointments than in past, though
likely about 50% of judges have partisan experience
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Is political experience helpful?
Should patronage in apppointments be entirely eliminated?
Gender
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1990: 6% judges women; 2001: 25%
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Likely closer to 30% today; may not rise higher
How willing are women to accept judgships?
Varies across jurisdictions: p. 61
Do women judges make a difference?
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Bertha Wilson talk at York, 1990
Depends on the area of law. Contract – no. Areas
where presuppositions make a difference – yes (crim)
Justice Abella: women judges serve as examples
Aboriginal Judges
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1988: 2 aboriginal judges. 2001: 18 (.8%),
mostly at inferior court level
Inuktitut word for lawyers means “the one who
lies for you.” Anglo-Canadian justice system iss
seen as a colonial imposition. Not “their” justice
system.
Aboriginal justice generally emphasizes
rehabilitation over proof of guilt & punishment
Sentencing circles; restorative justice
Visible Minority Judges
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Not much data, but visible minority judges are
under-represented
Justice Tulloch is the only black Superior Court
judge in Canada; one judge of south Asian
descent on Ont Superior Court (out of about 300
judges)
Most visible minority judges on the lower courts.
Part of issue: persuade visible minorities to go
to law school when it may not be part of family
tradition
Judges as High Achievers
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It’s hard to get into law school
90% of appellate judges have received academic awards or honours
17% of appellate judges have an MA; 9% have a PhD
Judges’ parents set the example
Half of judges have other family members who are lawyers
The higher the education, the more supportive of minority rights,
and more tolerance of difference (eg same sex marriage)
May explain some of the Supreme Court decisions critical of Harper
gov’t, such as Insite & Khadr, including Harper appointments to
Court
Is it a problem that judges are high achievers?
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Can they empathize with ordinary Canadians?
Are they transferring their own values, derived from family and higher education,
to the rest of the population? If so, is this a problem?
Baar: The Emergence of the
Judiciary as an Institution
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All judicial systems have certain goals in
common:
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As state actors, they try to enhance the
credibility of the state, and police government
Value independence and impartiality
Promote the rule of law
Desire for institutional effectiveness
Courts as State Actors
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Unless citizens have faith in courts as impartial dispute
resolution institutions:
 The regime’s legitimacy is eroded (eg. Egypt today)
 No confidence by internal or external investors, so
standard of living is diminished, further discrediting the
regime
But if courts are seen as to integrated with the state, they
lose credibility (eg. Michael Mandel’s critique of court
systems in capitalist countries; critical legal studies)
 Baar’s point: judges in every country (democratic,
authoritarian, Marxist) want their courts to be seen as
credible (eg. Cuba, Ethiopia, former Czeckoslovakia)
 Issue of resources or all Courts, especially in nonWestern countries
Independence & Impartiality
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Courts need independence from political branches of
government in order for judges to be as impartial as
possible.
Baar’s observation: judges everywhere strive to maximize
independence & impartiality (eg. Cuba, Pakistan, Ethiopia)
Baar: independence & impartiality recognized in
continental Europe & US only for past 2-300 years
My observation: struggle for independence & impartiality
in England is at least 1000 years old.
Concepts of adequate ind/imp vary in jurisdictions. Civil
law countries: OK for senior judges to “supervise” lower
court judges. US: elections for judges the norm in some
states. US: administrative independence is essential; not
so in Canada
Judges everywhere struggle
with threats to courts’ legitimacy
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Ronald Regan’s efforts to influence a judge while
California governor
Jean Chretien telephoning judges: disciplined by
Trudeau. Jean Charest I disciplined by Mulroney.
Jason Kenney: last February in a speech at U
Western Ont, ridiculed individual judicial decisions!
No discipline by Harper
Not just in authoritarian regimes where there is
sometimes interference with jud independence
Baar’s point: judges worldwide generally strive for
independence and impartiality
The rule of law
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Individual rights can only be limited if authorized
by law: a generally accepted principle worldwide.
Thus, we have judicial review on constitutional
grounds in many countries
Even without a constitutional bill of rights, courts
can and do try to protect the Rule of Law:
Roncarelli case in Quebec (1959)
Rule of law audit
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Can police search and seize court files?
Can prosecutors set trial dates without judicial
supervision?
Are search warrants required?
Are search warrants authorized by a judicial officer on a
fixed salary, or does payment vary according to # of
warrants approved?
Are judges competent, and do they have independence?
Is a bail hearing available to all those in custody?
Do courts rely on police for personnel, administration,
facilities or security?
Institutional effectiveness: a challenge for all courts
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Courts must be organized and administered to ensure they can fulfill
functions as state actor with independence & impartiality, and can
defend the rule of law.
Who assigns judges to courts and to cases?
Are court orders & judgments enforced?
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Marbury v. Madison: Madison (AG) refused to deliver commission to
Marbury. CJ Marshall knew he couldn’t enforce. So claimed Court’s
power to interpret the constitution, and said constitution did not give SC
of US the power to hear Marbury’s case.
Manitoba “official language” act unconstitutional, but gov’t refused to
comply with lower court decisions until 1980s.
Adequate financial resources
Adequate record keeping
Qualified court staff
Court governance
Measuring outcomes
Peter McCormick: Judicial
Independence
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1701: Act of Settlement in UK
 Judges appointed according to good behaviour
 Salaries established
 Judges not accountable to politicians or bureaucrats
 Part of tradition: judges are lawyers with experience, and
judges don’t challenge the supremacy of Parliament
Reform of judicial appointments in 70s & 80s enhanced
independence
Valente decision of SCC (1985): 3 essential components of
JI: a legislated right to a salary, judges can’t be removed
unless recommened by an impartial inquiry, & judges must
control those aspects of administration that affect caseflow
1990s & beyond
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Beauregard (1986): judicial pensions. Addition to
Valente: judges require “institutional independence”
MacKeigan v. Hickman: Judges can’t be forced to testify
in an inquiry.
Remuneration Reference (1997): “the blockbuster.”
Judicial independence requires “Judicial Compensation
Commissions.” Govt’s must give recommendations
“serious consideration.” Four decisions after that set the
standard for “serious consideration” very high. Reliance
on preamble to CA, 1867. Hogg: worst decision ever
made by SCC.
Bodner (2004): SCC seems to set lower standards for
“serious consideration,” perhaps in reaction to criticism.
Ell (2003): independence of sitting Justices of the Peace
in Alberta not threatened by requiring them to be
lawyers with 5 year experience, sitting for a fixed term
of 5 years.
What is judicial independence?
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From dissertation research:
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No interference in adjudication outside proper
procedures in court
Independence not absolute
Impartiality
Autonomy
Freedom from coercion
Aloofness
Canadian Jud Council:
Models of Court Administration (2006)
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Authors included Carl Baar, Lorne Sossin
Report a result of concern of perhaps a majority of
judges about both independence, and institutional
effectiveness
“Australian jurisdictions [after looking at Deschenes
Report] feature different models of self-governing Courts
with impressive records of improved effectiveness and
efficiency. Canada, by contrast, now ranks as one of the
last common law jurisdictions in which court
administration continues to be controlled by the
executive branch of government.”
Conclusions of Report (1)
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Canada has fallen behind peer jurisdictions such as
Australia in innovations in court administration.
Although the trend in most Canadian provinces is
toward an enhanced judicial role within the executive
model, the deficiencies of the executive model
continue to impair the ability of courts to fulfill court
administration goals and objectives.
The analysis of the evidence indicates that there is a
compelling constitutional rationale for changing the
executive model of court administration in Canada to a
model or models which feature a greater degree of
judicial autonomy.
This change ensures judicial independence.
This change also enhances the accountability of the
judiciary in court administration, as well as achieving
improved effectiveness and efficiency in court
administration.
Conclusions, cont’d
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Although there are legitimate variations in viewpoints and the strengths of
those positions on the issue, concerns about the shortcomings of the
executive model of court administration are widely held among the judiciary
and this view is shared by some executive officials.
There is significant support for a model of court administration based on
limited autonomy for the judiciary within an overall budget for court
administration set by the appropriate legislative authority. Support extends
further to linking this limited autonomy to the use of an independent
commission for the prevention and resolution of disputes related to the
overall size of the budget allocated to the judiciary.
There is also a need for a professional court administration with a chief
executive officer responsible to the Chief Justice. The existence of a CEO to
handle day-to-day operations will be important in ensuring that the judiciary
is not preoccupied with those matters and can focus on overall strategic
direction of court administration.
This report concludes that an optimal model of court administration would
be one which provides the judiciary with autonomy to manage the core
areas of court administration while ensuring (by the carefully considered
use of an independent commission) that the authority of the political
branches over resource allocation is not used arbitrarily.